Opinion
January 23, 1981
Appeal from the Cayuga Supreme Court.
Present — Dillon, P.J., Cardamone, Hancock, Jr., Callahan and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: While serving a sentence in Connecticut, petitioner was brought to Westchester County pursuant to the agreement on detainers (CPL 580.20) to appear upon criminal charges pending in that county. While awaiting their disposition he spent 369 days in jail for which he was properly credited on his Connecticut sentence (CPL 580.20, art 5, par [f]). He pleaded guilty in Westchester County to three counts of burglary in the third degree and was sentenced on May 19, 1975 to indeterminate concurrent terms with a maximum of seven years on each count. Upon completing his sentence in Connecticut he was returned to Auburn Correctional Facility to commence serving his New York sentence. He argues in this CPLR article 78 proceeding that respondent should be directed to give him credit on his sentence for the time served in jail while he was awaiting disposition of the Westchester County indictments. Supreme Court dismissed the petition but granted petitioner leave to reinstitute the proceeding in Westchester County. Petitioner is not entitled to jail time credit on his New York sentence (People ex rel. Kendall v. Follette, 47 A.D.2d 546). His petition recites, however, that his pleas of guilty in Westchester County were induced by the promise of the District Attorney and the sentencing court that he would receive such jail time credit. It is unclear in the record whether petitioner has brought prior proceedings in Westchester County based upon that assertion. It is also unclear whether petitioner has raised that issue on an appeal which may remain pending from the Westchester County judgment of conviction (see CPL 440.10, subd 2). Petitioner's remedy, if not already passed upon or otherwise foreclosed, is to move in Westchester County pursuant to CPL 440.10 (subd 1, par [b]) to vacate the judgment of conviction (People v. Caputo, 36 N.Y.2d 653, 654; Matter of Leonard v. Barnes, 280 App. Div. 1, affd 303 N.Y. 989; People v. Massaline, 71 A.D.2d 981).